In the case of C.M. v. J.M., Maryland’s mid-level appellate court recently decided in a published Opinion that a parent’s demeaning comments about his two adolescent children’s sexual orientation could serve as the basis for the granting of a final protective order. The court decided that a father who had repeatedly communicated in person and through text messages homophobic comments based on the father’s religious beliefs had caused fear and shame, which constituted “threats “and “mental injury” to his 15-year-old and 12-year-old children.  Since it is a published case, this decision can be cited as case law in any Court in Maryland.

The children’s mother had testified at trial that she had filed the protective order due to her concern for her and her children’s safety because of numerous texts the father had sent, which over the years had “progressively gotten worse.” The parties focused on events that occurred during the four months that preceded the filing of the protective order.  The children’s mother denied steering the older child toward identifying as transgender but had actively supported the child’s decision to be transgender by arranging for therapy and attending meetings of Parents, Families, and Friends of Lesbians and Gays (“PFLAG”).

However, when the 15-year-old child told his father that he identified as transgender, the father “opposed” his decision and refused to call him by his preferred name. The child then engaged in the self-harming behavior of “cutting.” The child’s father sent text messages including “What is your email address?” and “I’m sending you an email, and I’m copying your mother and my lawyer. I’m t[ir]ed of the BS manipulations. Your grandmother doesn’t call you, and neither does either one of your aunts and uncle up here, and for some reason, my Christian beliefs are being attacked, so the intent is for a trial so that everyone can understand what your mother has manipulated a wedge after you and I had already come to an agreement [to call you a shortened version of your given name].”

The father testified that his actions occurred only because he was concerned for his children’s souls and had no intent to harm them.

The Law

Maryland courts are authorized to enter a final protective order when a parent has caused “mental injury” to his or her child. “Mental injury” is defined as “the observable, identifiable, and substantial impairment of a child’s mental or psychological ability to function caused by a reckless or intentional act or series of acts[.]” FL § 5-701(r). Both physical and mental harm must be intentional or reckless and cannot be the product of an accident. “Recklessness” conduct is conduct that exposes the victim to a substantial risk of harm. This provision only includes children, not adults.

The Family Law (“FL”) Article of the Maryland Code governs domestic violence. Its purpose is “to protect and aid victims of domestic abuse by providing . . . immediate and effective remed[ies]” wide in variety and scope to “avoid future abuse.” 365 Md. 122, 134 (2001) The primary goals of the statute are preventative, protective, and remedial, not punitive.”

To determine whether the child’s mental or psychological ability had been impaired by an intentional or reckless act or series of acts, the appellate court used the  “threats” definition established by  the Supreme Court of Maryland case in the case of Katsenelenbogen.  This case states:

The issue . . .is whether a reasonable person with a background of physical or mental abuse could perceive the [harmful]situation in the same way. A person who has been subjected to the kind of [prior] abuse may well be sensitive to non-verbal signals or code words that have proved threatening in the past to that victim but which someone else, not having that experience, would not perceive to be threatening. The reasonableness of an asserted fear emanating from that kind of conduct or communication must be viewed from the perspective of the particular victim. Any special vulnerability or dependence by the victim, by virtue of physical, mental, or emotional condition or impairment, also must be considered by the court.

Court’s Important Ruling

The court found that the Father “has repeatedly communicated in person and through text messages homophobic comments and religious beliefs, both threatened and caused mental injury to the child. It concluded that the child was fearful of getting hit due to his father’s anger and aggressiveness in the past and his reaction to him coming out as gay.” The court also found that the father’s repeated homophobic comments were made in reckless disregard to the child’s welfare creating a “substantial risk” of a traumatizing mental injury.

After finding “mental abuse”, the court  limited the son’s visitation with his Father to “occur only if the child is comfortable with doing so” and that the father could communicate with the child “but may not use that communication to abuse the child regarding the child’s sexual orientation and/or religion.”  It is noteworthy that the Court added a footnote to the decision that the case did not raise nor address “any constitutional rights regarding the freedom of religion or parental rights.”  This case enshrines into law that a parent cannot repeatedly threaten or abuse a child when addressing sensitive issues like sexual orientation.